dissenting.
I respectfully dissent. It has long been settled that a compulsory nonsuit can only be granted in cases where it is *60clear that a cause of action has not been established. The plaintiff must be given the benefit of all favorable evidence along with all favorable inferences of fact arising from that evidence. Any conflict in the evidence must be resolved in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 506 A.2d 862 (1986). The majority today holds that even under this standard appellant has failed to establish a cause of action. I am unable to join such an opinion for I believe an examination of the record reveals that appellant has established a cause of action under res ipsa loquitur and absolute nuisance.
The doctrine of res ipsa loquitur is neither a rule of procedure nor one of substantive tort law. Rather, it is a shorthand expression for circumstantial proof of negligence, i.e. a rule of evidence. Gilbert v. Korvette, 457 Pa. 602, 611, 327 A.2d 94, 99 (1974). Res ipsa, as delineated in section 328 D of the Restatement (Second) of Torts, was adopted by this court in Gilbert v. Korvette. Section 328 D states,
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.
Restatement (Second) of Torts, § 328 D (1965).
The majority rejects appellant’s claim under res ipsa loqui-tur on the ground that she has failed to eliminate herself and *61third parties as causes of the harm in question, as required by section 328 D(l)(b). This analysis, however, ignores the fact that under section 328 D(l)(b) a plaintiff is not required to exclude all other possible causes beyond a reasonable doubt. Rather, it is enough that he makes out a case from which the jury may reasonably conclude that the negligence was, more probably than not, that of the defendant. Id. at comment f.
If the sewer backup which occurred here was a single, isolated incident, I would agree with the majority that appellant has failed to meet this standard. Under the present facts, however, the sewer lines in the condominium complex in which appellant resided had backed up over twenty times prior to the incident giving rise to this case. When viewed in a light most favorable to appellant, I believe the sheer number and repetitive nature of these stoppages, which occurred in all the buildings of the condominium complex, indicate that the back-ups were not simply the result of carelessness on the part of individual residents, but rather were the result of negligence on the part of appellee. As stated by Judge Cirillo in his dissenting opinion in the Superior Court:
Common sewer lines do not back-up and overflow into individual apartments with the documented frequency Smith experienced absent negligence, negligence either in failing to maintain the sewer lines properly or in failing to sue the developer for installing a defectively designed or constructed sewage removal system.
Smith v. King’s Grant Condominium, 418 Pa.Super. 260, 282, 614 A.2d 261, 272 (1992) (Cirillo, J., dissenting). Thus, I feel appellant has sufficiently eliminated other possible causes and should be permitted to go to the jury under the theory of res ipsa loquitur.
I am likewise convinced that appellant has successfully established a claim under the theory of absolute nuisance. Under the theory of absolute nuisance a defendant is held strictly liable for the offending activity, relieving the plaintiff of the burden of proving the defendant’s negligence or intent to harm. Prosser and Keaton on Torts § 78 (5th ed. 1984). I *62agree with the majority that the Superior Court correctly summarized liability under this theory when it stated,
Under such a doctrine a plaintiff need only show that sewage from defendant’s land has travelled onto plaintiffs land and that plaintiff has been injured thereby. Negligence need not be shown, liability being absolute.
Smith v. King’s Grant Condominium, 418 Pa.Super. at 273, 614 A.2d at 267. See also In re Haugh’s Appeal, 102 Pa. 42 (1883); Knaus v. Brau, 107 Pa. 85 (1884).
In the case sub judice, the majority concedes that the sewer line in question was under the control of appellee (condominium association). Hence, the association could be held liable for the damage to appellant’s home on the basis of absolute nuisance. The majority, however, declines to grant appellant relief under this theory on the ground that it was not properly pleaded. I am unable to join such a holding.
Although appellant may have mistakenly used the term negligence in her pleadings, it was apparent throughout the proceedings that appellant was in fact asserting a claim based on absolute nuisance. Examination of the record reveals that this misnomer appeared in pre-trial discussions in which the following remarks were made by appellant’s counsel to the trial court:
THE COURT: Well, your theory is negligence.
MR. REA (appellant’s counsel): Our theory of the case is they owe us an absolute duty not to put sewage on our property, the same as any neighbor owes that duty to an adjacent neighbor, not to put sewage, smoke, unusual whatever it is, onto somebody else’s property.
(Notes of Testimony (N.T.) 6/1/90-6/4/90, p. 36). Also:
MR. REA: If their pipe overflows into our unit, we have a right to recover for that, and I don’t have to show what they could have done to prevent it.
(N.T., p. 39). And:
MR. REA: I’m saying under the terms of the Restatement and every case I have found in Pennsylvania, that when someone invades your property, unless they have a right to *63do it, they have to respond to me in damages for that invasion. It’s the same as if you have two neighbors and if you have your sewer pipe leading out to your street, your sanitary sewer pipe leading out to your street, and that breaks and you flood the next door neighbor, you’re responsible for that. I don’t have to go into your pipe to And out why it broke. You owe me the duty not to put sewage onto my property.
(N.T., p. 40).
Such a mistake on the part of appellant’s counsel would seem excusable in the present case, in which the correct theory under which to proceed was far from readily apparent, and indeed, until today had not yet been clearly articulated. As stated by the Superior Court:
The court and the parties below searched the Restatement (Second) of Torts in vain for the appropriate theory of tort to apply to the facts of this case. Their assay of tort law was quixotic because the theory of tort they were seeking exists more or less in an inchoate form.
Smith v. King’s Grant Condominium, 418 Pa.Super. at 265, 614 A.2d at 263. In addition, appellant’s failure to properly plead absolute nuisance properly is even more understandable in light of the fact that the confusion regarding the correct theory under which to proceed was compounded by the trial court’s erroneous assertions that absolute nuisance was inapplicable because appellant was a “part owner” of the sewer line in question. (N.T. pp. 40-44).
Furthermore, this confusion regarding the correct legal theory under which to proceed had left all parties on notice that any applicable theory of tort would be considered. Thus, appellee cannot claim to have been prejudiced by unfair surprise if this court were to hold that appellant has established a cause of action on the basis of absolute nuisance. Indeed, it appears that appellee was well aware that appellant was actually pursuing a theory of strict liability, as evidenced by the following remark by defense counsel during pre-trial discussions:
*64MR. GLASSER (defense counsel): ... He’s trying to divert you into a strict liability on one hand, saying no it’s not strict liability, but then he’s arguing it is.
(N.T., p. 32).
Under these circumstances, I would reverse the order of the Superior court, and hold that in addition to establishing a claim under res ipsa loquitur appellant has established a claim under absolute nuisance. The majority, however, chooses to deny appellant relief solely due to her counsel’s misnomer. I am unable to agree with such a holding for it clearly elevates form over substance and in doing so forces appellant to bear the losses caused by a malfunctioning sewer system over which she had no control. Such a result is hardly in accord with our duty as a court of law to do justice, accordingly I dissent.
PAPADAKOS, J., joins in this dissenting opinion.